By Michael Bradley Tuesday 23 September 2014
Photo: Section 35P has clearly been designed to kill any reportage of whistleblowing on security matters. (AAP: Stefan Postles)
One of the most profound consequences of the new round of national security laws will be a major loss of press freedom. And that's passing through almost without protest, even from the media itself, writes Michael Bradley.
Prime Minister Tony Abbott yesterday told Parliament that "the delicate balance between freedom and security may have to shift. There may be more restrictions on some, so that there can be more protection for others."
He didn't say who will be giving up their freedoms but, while we all know he means Australian Muslims, it's ironic that one of the most profound consequences of the new round of national security laws will be a major loss of press freedom. And that's passing through almost without protest, even from the media itself.
Buried deep inside the National Security Legislation Amendment Bill (No. 1) 2014 is a new thing called a "Special Intelligence Operation" (SIO). This is a spying operation that will involve laws being broken.
Once it has been designated an SIO, the agents are immune from prosecution. In the draft, ASIO was going to be deciding for itself what is or isn't an SIO, but the Parliamentary Joint Committee on Intelligence and Security, which reviewed the Bill, recommended that this decision should be made by the Attorney General. The Government has accepted this.
How much more comfortable you feel knowing that it will be George Brandis deciding when it's OK for ASIO to break into your house or hack your phone without a warrant is one thing.
How much more comfortable you feel knowing that it will be George Brandis deciding when it's OK for ASIO to break into your house or hack your phone without a warrant is one thing. Another is the surreal nature of the debate that caused the Attorney General to announce that torture will be specifically excluded from the list of crimes that an SIO will excuse.
But the sleeper is section 35P, which creates a criminal offence of disclosing information that relates to an SIO, with a penalty of up to five years in prison.
This provision attracted some attention from the Joint Committee. It made a few recommendations for changes that the Government has accepted. None of these should make journalists sleep more comfortably.
The offence catches not just those who leak information, but anyone who republishes it. There are no defences to protect journalists, such as public interest. And note the word "relates". Not just the details of the SIO, but even the fact that it exists, or tangentially connected information, will be caught in the net.
The offence has two elements:
- That the person disclosed information; and
- That the information related to an SIO.
That's it. All that has to be proved is that the disclosure was intentional (not accidental), and that the person making it was reckless as to whether it related to an SIO. They don't have to have known that the SIO even existed and, of course, how could they? SIOs are extremely secret squirrel.
"Recklessness" means knowledge of a substantial risk, coupled with a decision to take that risk. The AG's Department argued before the Joint Committee that this is a high burden of proof and that it would be impossible to accidentally offend because if a journalist has no awareness that the information could relate to an SIO, they couldn't be held to have been aware of a risk that it did. The Department said this:
"The Department does not accept suggestions that a mere awareness that ASIO is, or may be, involved in any activity of any kind must necessarily give rise to awareness of a substantial risk that there was an SIO on foot."
That's patent nonsense, and it deliberately misses the point anyway. Section 35P has clearly been designed to kill any reportage of whistleblowing on security matters, because a journalist will have to assume, once he or she is in possession of the leaked material, that there is a risk that it relates to an SIO.
A court could easily find that the journalist was aware of the risk, even if the journalist in fact wasn't, by simply not believing the journalist's denials. The reality is that journalists who value their physical freedom will be scared off from reporting on intelligence operations.
The other change the Committee has achieved is that the Director of Public Prosecutions will be required to take into account the "public interest" before prosecuting anyone under s35P. That's laughably meaningless.
The final insult is that there's no sunset on SIOs. Once an SIO has been declared, s35P will apply to it for all time.
What's left is practically no different from the original draft. The Joint Committee was clearly bamboozled by the AG's Department and ASIO, and perhaps caught up in the current rush to protect us all from the global beheading frenzy lapping at Australia's shores.
Journalists who receive information, even anonymously, which looks like it could relate to something to do with intelligence operations (like, say, a revelation that we've been hacking the Indonesian president's phone), will have to be extraordinarily brave to go ahead and publish. Pity the country that gives up the freedom of its press as lightly as we are about to do.
Michael Bradley is the managing partner of Marque Lawyers, a boutique Sydney law firm. View his full profile here.
Press freedom sidelined in pursuit of security - The Drum (Australian Broadcasting Corporation)
